COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Petty and Alston Argued at Chesapeake, Virginia
SHAVIS SHUNDALE CLARK MEMORANDUM OPINION * BY v. Record No. 1398-10-1 JUDGE WILLIAM G. PETTY JULY 5, 2011 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK John R. Doyle, III, Judge1
J. Barry McCracken, Assistant Public Defender, for appellant.
Leah A. Darron, Senior Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.
Appellant, Shavis Shundale Clark, was convicted in a bench trial of possession of cocaine
with intent to distribute in violation of Code § 18.2-248, transporting one or more ounces of
cocaine into the Commonwealth in violation of Code § 18.2-248.01, and conspiracy to distribute
cocaine in violation of Code § 18.2-256. On appeal, Clark argues that the trial court abused its
discretion when it (1) ruled that Clark could not argue that the police exceeded the scope of the
search warrant because he had not included that challenge in his written motions and (2) ruled
that it would not grant Clark another hearing if he filed another motion to suppress raising that
issue. Clark also argues that the evidence was insufficient as a matter of law to support his
convictions.
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. 1 Judge Doyle presided over Clark’s trial. Judge Everett A. Martin, Jr., presided over the suppression hearing that is also the subject of this appeal. For the following reasons, we conclude that the trial court did not abuse its discretion by
refusing to consider the new argument that was not included in Clark’s written motion to
suppress, and further, that Clark failed to preserve his objection to the scope of the search. We
also disagree that the evidence was insufficient to support the convictions for possession of
cocaine with intent to distribute and for transporting an ounce or more of cocaine into Virginia.
However, we agree that the evidence was insufficient to support the conspiracy charge. Thus,
we reverse and dismiss the conspiracy conviction and affirm the remaining convictions.
I.
Because the parties are fully conversant with the record in this case and this
memorandum opinion carries no precedential value, we recite below only those facts and
incidents of the proceedings as are necessary to the parties’ understanding of the disposition of
this appeal. We view the evidence in the light most favorable to the Commonwealth, and grant
to it all reasonable inferences fairly deducible from that evidence. Brown v. Commonwealth, 56
Va. App. 178, 180, 692 S.E.2d 271, 272 (2010).
II.
A. Suppression
Clark first assigns error to two trial court actions relating to his objection to the seizure of
certain evidence during a search pursuant to a warrant. Clark filed two motions to suppress prior
to trial. The first motion asked the trial court to suppress the evidence seized by police during
the search of Clark’s apartment due to an alleged lack of probable cause to issue the warrant.
The second motion asked the trial court to suppress statements Clark made to police. At the
hearing, Clark’s trial counsel attempted to expand his argument challenging the search by
alleging that the police exceeded the scope of the search warrant by seizing items that were not
included in the warrant. In response to the Commonwealth’s objection to the new argument,
-2- Clark stated, “I can file another motion.” The trial court sustained the Commonwealth’s
objection, concluding that Clark had failed to give written notice that he would present the new
argument. The trial court also said, “Well, we’re not going to have two suppression hearings.
I’ll make that ruling now. You’ve had plenty of time to file suppression motions in this case.
This case has been pending for an inordinate length of time. We’re not going to have another
suppression hearing.” Thereafter, Clark asked the court to allow him to argue the issue at the
current hearing, explaining that there was no need for an additional hearing. The trial court
denied the request, reiterating that the Commonwealth had not received proper notice. Clark
later filed a written motion to suppress that embodied the argument he wished to make at the
previous hearing. He never requested either a hearing or a ruling on the written motion.
Clark now appeals the trial court’s refusal to consider his challenge to the scope of the
search. We conclude that the trial court did not abuse its discretion by refusing to consider the
new argument at the hearing because it was not included in the pending written motion to
suppress. We further conclude that Clark waived his subsequent written motion to suppress
because he failed to ask the trial court to rule on that written motion.
“In Virginia, the conduct of a trial is committed to the discretion of the trial court.” Frye
v. Commonwealth, 231 Va. 370, 381, 345 S.E.2d 267, 276 (1986) (citing Watkins v.
Commonwealth, 229 Va. 469, 484, 331 S.E.2d 422, 433 (1985)). Part of the conduct of a trial
includes pre-trial matters before the court, including motions to suppress. See Code § 19.2-60
(stating that a criminal defendant may move to suppress evidence obtained by an allegedly
unlawful search or seizure); Code § 19.2-266.2 (setting forth when a defendant must file a
suppression motion and when a hearing should be held); Rule 3A:9 (allowing the parties to raise
certain matters before trial). Under Code § 19.2-266.2, a defendant that wishes to move the court
-3- to suppress evidence must do so in writing. Further, under Rule 3A:9(b)(3), the written motion
must “state with particularity the ground or grounds on which it is based.”
Here, the trial court did not abuse its discretion by refusing to allow Clark to interject
additional objections to the lawfulness of the seizure of evidence. At the time of the hearing, his
written motion to suppress pertaining to the search alleged only that there was no probable cause
to justify the issuance of the search warrant. He did not allege that the police exceeded the scope
of the search warrant by seizing items not listed in the warrant. Accordingly, Clark’s written
motion failed to state the issue he wished to argue with the particularity required by Rule 3A:9.
Therefore, the trial court was within its discretion to limit the scope of the suppression hearing to
only those issues raised by Clark in his written motions.
Regarding Clark’s assignment of error related to his subsequent motion to suppress, we
conclude that Clark’s actions below failed to adequately preserve this issue for appeal. Under
Rule 5A:18, 2 “No ruling of the trial court . . . will be considered as a basis for reversal unless the
objection was stated together with the grounds therefor at the time of the ruling . . . .” The
purpose of this Rule “is to afford the trial court an opportunity to rule” on the motion. Williams
v. Commonwealth, 57 Va. App. 341, 347, 702 S.E.2d 260, 263 (2010). A party that brings a
motion to the attention of the trial court, but then disclaims any desire to receive a ruling from
the court, has failed to afford the trial court the opportunity to rule on the motion and has thereby
failed to preserve any issues raised in the motion for appeal. See Nusbaum v. Berlin, 273 Va.
385, 396-97, 405-06, 641 S.E.2d 494, 499-500, 505-06 (2007) (holding that when a party makes
2 Effective July 1, 2010, Rule 5A:18 was revised to state that “[n]o ruling of the trial court . . . will be considered as a basis for reversal unless an objection was stated with reasonable certainty at the time of the ruling . . . .” Because the proceedings below were completed prior to this revision taking effect, we will rely on the language of Rule 5A:18 that was then in effect. See Fails v. Va. State Bar, 265 Va. 3, 5 n.1, 574 S.E.2d 530, 531 n.1 (2003) (applying the Rule of Court in effect at the time of the proceedings below). -4- an objection but tells the trial court he is merely seeking to preserve the record and nothing more,
the party has not actually sought a ruling on the objection). 3
Here, Clark never asked the trial court for a ruling on his motion once he had filed it. 4
The only time Clark’s trial counsel ever brought the filed motion to the attention of the trial court
was just before the trial began. At that time, counsel disclaimed his desire for a ruling, stating
that he filed the motion not to contravene the previous ruling of the court, “but rather to make the
record for [his] client.” Accordingly, he did not ask for an actual ruling on the motion at that
time. Thus, whether the police exceeded the scope of the search warrant is an issue he failed to
preserve for appeal.
B. Sufficiency of the Evidence
Clark also assigns error to the trial court’s ruling that the evidence was sufficient to
support all of the charges against him. We disagree with respect to the charges of possession of
cocaine with intent to distribute and transporting one ounce or more of cocaine into the
Commonwealth. We conclude that the evidence, taken with reasonable inferences, was
sufficient to prove that Clark had arranged for a second person to sell him cocaine. Thus, the
evidence was sufficient to prove that he knew the unopened FedEx box he received contained
cocaine and that he was a principal in the second degree to the transportation of cocaine into the
3 “Although Rule 5A:18 contains exceptions for good cause or to meet the ends of justice, appellant does not argue these exceptions and we will not invoke them sua sponte.” Williams, 57 Va. App. at 347, 702 S.E.2d at 263 (citing Edwards v. Commonwealth, 41 Va. App. 752, 761, 589 S.E.2d 444, 448 (2003) (en banc)). 4 The trial court was incapable of rendering a decision on the motion before it was filed. Although Clark alleges that the trial court effectively ruled that it would not consider the motion once he filed it, the court did not actually make such a ruling. Instead, it ruled that it would have no further suppression hearings. In response, Clark told the court that he did not want a hearing because in his view it was unnecessary. So, by his own admission, he only required a ruling from the trial court on a motion he had not yet filed. Thus, he was required to ask for a ruling on the motion once he had filed it in order to seek a remedy from this Court. See Rule 5A:18. As we explain further, he never asked for such a ruling after he filed his motion. -5- Commonwealth. However, we agree with Clark that the evidence was insufficient to prove that
Clark conspired with the second person to distribute cocaine because the evidence failed to
demonstrate anything beyond a mere sale of drugs, which is legally insufficient to support the
charge.
The relevant evidence shows that the police intercepted a package at a FedEx distribution
facility in Norfolk that they suspected of containing contraband. The package was addressed to
Jason Thomas, 1626 Lovitt Avenue, Apt. 4, Norfolk, Virginia. The package had a return address
of Marie Thomas, 470 Northeast 123 Street, Miami, Florida. It was marked for overnight
delivery. After a drug dog indicated the presence of illegal drugs in the package, the police
obtained a search warrant for the package, opened it, and discovered about 124 grams of cocaine
inside, along with other items, including dryer sheets. Because the dog had damaged the
package, the police placed the contents of the package inside a new, identical FedEx package,
with the exception that they only put about 1.5 grams of the cocaine inside the new package.
They also transferred the “air bill” that indicated the recipient and return addresses onto the new
package.
The police then obtained an “anticipatory” search warrant predicated on the successful
delivery of the package to 1626 Lovitt Avenue, Apt. 4, in Norfolk. A police officer disguised as
a FedEx employee delivered the package to the address and was greeted at the door by Clark.
When the officer asked Clark whether he was Jason Thomas, Clark said Thomas was his cousin.
When asked whether he would accept the package on Thomas’ behalf, Clark agreed and
accepted the package. Not long after, the police executed the anticipatory search warrant on the
apartment. They found Clark sitting on a couch in the living room of the apartment with the
unopened package resting on a nearby coffee table. They also found a digital scale, a smaller
-6- manual scale, and several plastic baggies in his bedroom. Some of the baggies were the kind one
would use to package cocaine for individual sale.
When the police asked Clark who Jason Thomas was, Clark said he did not know. When
asked why he said the package was for his cousin, Clark claimed that he had just awakened when
he came to the door and that he did not completely understand what was going on. Clark also
tried to convince the police that he possessed the scales and baggies because he distributed
marijuana “back in the day.” Finally, when confronted with evidence that he had recently sent
money orders to Florida, Clark told the police that a person he did not know had given him
money to send to Clark’s roommate in Florida and that Clark did so. The trial court, sitting
without a jury, found that these were “not rational” explanations and convicted Clark on all
charges.
When reviewing the sufficiency of the evidence to support the verdict in a bench trial,
“the trial court’s judgment is entitled to the same weight as a jury verdict and will not be
disturbed on appeal unless it is ‘plainly wrong or without evidence to support it.’” Hickson v.
Commonwealth, 258 Va. 383, 387, 520 S.E.2d 643, 645 (1999) (quoting Code § 8.01-680; King
v. Commonwealth, 217 Va. 601, 604, 231 S.E.2d 312, 315 (1977)). Hence, an “appellate court
does not ‘ask itself whether it believes that the evidence at the trial established guilt beyond a
reasonable doubt.’” Britt v. Commonwealth, 276 Va. 569, 573-74, 667 S.E.2d 763, 765 (2008)
(emphasis in original) (quoting Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)). “Rather, the
relevant question is whether ‘any rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.’” Id. (emphasis in original) (quoting Jackson, 443 U.S. at
319). “‘This familiar standard gives full play to the responsibility of the trier of fact . . . to
resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from
-7- basic facts to ultimate facts.’” Brown v. Commonwealth, 56 Va. App. 178, 185, 692 S.E.2d 271,
274 (2010) (quoting Jackson, 443 U.S. at 319).
1. Possession of Cocaine with Intent To Distribute
Clark first argues that the evidence was insufficient to prove possession of cocaine with
intent to distribute. He asserts that no rational trier of fact could infer from the evidence that
Clark knew that the unopened package contained cocaine. We disagree.
In order to convict a defendant of possession of an illegal drug with intent to distribute,
the Commonwealth must prove that the defendant was aware of the presence and character of the
drug and that he intentionally and consciously possessed it. Ward v. Commonwealth, 47
Va. App. 733, 751, 627 S.E.2d 520, 529 (2006), aff’d on other grounds, 273 Va. 211, 639 S.E.2d
269 (2007). To determine these elements, we may, and often must, look to circumstantial
evidence. Id. Thus, the defendant’s conduct and statements, taken together with the surrounding
circumstances, may be sufficient to prove that the defendant was aware of the presence and
character of an illegal drug and that he intentionally and consciously possessed it. Id.
We have previously held that the evidence was sufficient to convict a defendant of possession of
cocaine with intent to distribute and possession of marijuana with intent to distribute when he
received a package containing cocaine and marijuana, even though he never opened the package.
Id. at 751-53, 627 S.E.2d at 529-30. In Ward, the defendant received a package containing
marijuana and cocaine addressed to a female. Id. at 738-39, 627 S.E.2d at 523. The marijuana
and cocaine were heat sealed and wrapped in carbon paper in an attempt to throw off
drug-sniffing dogs. Id. at 739, 627 S.E.2d at 523. Upon delivery, the defendant confirmed that
the package was for him, even though it was addressed to a female. Id. Thereafter, police
executed an anticipatory search warrant on the address. Id. In addition to the unopened package,
the police found several small plastic baggies suitable for packaging marijuana for individual
-8- sale. Id. When asked about the package, the defendant said he thought the package was his
because he was expecting to receive some tapes in the mail. Id. According to this Court:
[The defendant’s] admissions, which permitted the inference he was using a fictitious name—coupled with the manner of the packaging of the drugs to prevent detection by drug sniffing dogs, [the defendant’s] prior receipt of two almost identical packages, and the inference that drugs are a thing of value people are unlikely to abandon or ship to another without warning—were sufficient to support a finding that [the defendant] was expecting to receive the drugs through the mail . . . and that he intentionally and consciously possessed them even before he opened the package.
Id.
Ward is instructive on several points relevant to this case. First, as in Ward, the
fact-finder could reasonably infer that Clark was using an alias. Clark initially told the officer
disguised as a FedEx deliveryman that the intended recipient of the package, Jason Thomas, was
his cousin. Not long after, he told police that he had no idea who Jason Thomas was. From this
apparent lie, along with the fact that the sender was a “Marie Thomas,” the fact-finder could
reasonably infer that “Jason Thomas” was really Clark. Second, like the package in Ward that
contained material intended to throw off the scent of drug-sniffing dogs, the package in this case
contained dryer sheets, which the fact-finder could reasonably infer had the same purpose.
Third, like the defendant in Ward, Clark possessed several plastic baggies that one would use to
distribute the illegal drug contained within the package he received. Fourth, as Ward notes,
drugs are valuable; a person is unlikely to ship drugs to another person without warning. Finally,
Clark’s admission to sending money to someone in Florida could reasonably be construed as
payment for the drugs.
Thus, the circumstances in this case provide compelling evidence that Clark knew that
cocaine was inside the package delivered to his apartment. His apparent attempts to conceal that
guilt are particularly probative. Clark tried to deny that he knew who Jason Thomas was, even
-9- though minutes before Clark claimed that Thomas was his cousin. He also unconvincingly
claimed that he had used the scales and baggies to distribute drugs long ago, but that he was not
currently dealing drugs. The fact-finder was free to disbelieve these self-serving statements, and
further, to infer that Clark was actually concealing his knowledge of what was inside the
package. See Carter v. Commonwealth, 223 Va. 528, 532, 290 S.E.2d 865, 867 (1982) (holding
that the fact-finder “‘need not believe the accused’s explanation and may infer that he is trying to
conceal his guilt’” (quoting Black v. Commonwealth, 222 Va. 838, 842, 284 S.E.2d 608, 610
(1981))). 5 Although any one of the foregoing circumstances, standing alone, may have given
rise only to a general suspicion insufficient to support an inference that Clark knew the contents
of the package, taken in their totality these circumstances provided sufficient evidence that Clark
knew the contents of the package. Accordingly, the evidence was sufficient to prove that Clark
intentionally and consciously possessed the cocaine inside the package with an awareness of its
nature and character.
2. Transporting Cocaine into the Commonwealth
Clark also argues that the evidence was insufficient to prove that he transported an ounce
or more of cocaine into the Commonwealth in violation of Code § 18.2-248.01. He suggests that
the trial court improperly convicted him as a principal in the second degree. We disagree.
Code § 18.2-248.01 makes it “unlawful for any person to transport into the
Commonwealth by any means with intent to sell or distribute one ounce or more of cocaine,”
among other illicit substances. As with any felony, a person is guilty of the crime set forth in
Code § 18.2-248.01 not only if he is a principal in the first degree, but also if he is a principal in
5 Clark argues that the fact that only 1.5 grams of cocaine were actually delivered to him undercuts the case against him. This argument is unpersuasive. The important fact here is that a large amount of cocaine was shipped to Clark, and the fact-finder could reasonably infer that it was shipped to him so he could sell it—regardless of the ultimate quantity that ended up in his possession. - 10 - the second degree. Washington v. Commonwealth, 43 Va. App. 291, 306, 597 S.E.2d 256, 263
(2004). To be a principal in the second degree, the person must be “‘present, aiding and
abetting, by helping some way in the commission of the crime.’” Id. (quoting Ramsey v.
Commonwealth, 2 Va. App. 265, 269, 343 S.E.2d 465, 468 (1986)). The person must “share[]
the criminal intent of the principal [in the first degree] or ‘commit[] some overt act in furtherance
of the offense.’” Id. (quoting Sutton v. Commonwealth, 228 Va. 654, 666, 324 S.E.2d 665, 671
(1985)). In the case of transportation of an illegal drug into the Commonwealth, a person is
present during the commission of the crime when he receives the drug in the Commonwealth,
since “unloading” the package is a necessary part of “transportation.” Id. at 306, 597 S.E.2d at
264. Further, a person performs an overt act in such circumstances when he creates the
conditions necessary for the receipt of a package containing an illicit drug within the
Commonwealth, with knowledge of the illegal drug therein. Id. at 297, 308, 597 S.E.2d at 259,
264. In Washington, for instance, a person committed overt acts necessary to become a principal
in the second degree when he rented a mailbox for the purpose of receiving a package containing
marijuana and he actually received the package. Id.
Here, the evidence was sufficient to prove that Clark committed an overt act in
furtherance of the crime and that he was present during the commission of the crime. As we
have already explained, the evidence was sufficient to prove that Clark knew that the package
contained cocaine and that he had purchased it from an unknown supplier in Florida. 6 Given
this, the fact-finder could also reasonably infer that Clark had told his supplier to send the
6 Clark argues that the Commonwealth failed to exclude the reasonable hypothesis that Clark sent the package to himself. We disagree. Given that the shipment originated in Florida and the “overnight” indication on the package, the fact-finder could reasonably believe that the package was, in fact, sent overnight from Miami, Florida to Norfolk, Virginia. Because these locations are so far apart, the fact-finder could therefore reasonably believe that Clark did not send the package to himself. - 11 - cocaine to his apartment. By doing so, Clark committed an overt act by designating his
apartment as the destination for the cocaine, just as the appellant in Washington had rented a
mailbox for the same purpose. Further, Clark committed another overt act by receiving the
cocaine, just as the appellant did in Washington. Finally, by receiving the cocaine and
completing the act of transportation, Clark was also present during the crime. Therefore, the
evidence was sufficient to prove that Clark was a principal in the second degree to the crime of
transporting an ounce or more of cocaine into the Commonwealth in violation of Code
§ 18.2-248.01.
3. Conspiracy To Distribute Cocaine
Clark finally argues that the evidence was insufficient to prove that he conspired to
distribute cocaine in violation of Code § 18.2-256. Clark asserts that even if a reasonable trier of
fact could infer the existence of an agreement between him and a supplier in Florida, there is no
evidence that the agreement went beyond anything more than a mere sale of cocaine, which is
insufficient to prove the crime. We agree with Clark that, at best, the evidence established a
single sale between Clark and a supplier that failed to establish the facts necessary to push the
sale into the realm of conspiracy. Thus, we conclude that the evidence was insufficient as a
matter of law to support Clark’s conviction for conspiracy to distribute cocaine.
To establish a conspiracy to distribute an illegal drug, the evidence must demonstrate
“(1) ‘that the seller knows the buyer’s intended illegal use,’ and (2) ‘that by the sale [the seller]
intends to further, promote and cooperate in [the venture].’” Zuniga v. Commonwealth, 7 Va.
App. 523, 529, 375 S.E.2d 381, 385 (1988) (alterations in original) (quoting Direct Sales Co. v.
United States, 319 U.S. 703, 711 (1943)). The first element of the test is satisfied when the seller
sells an illegal drug to a buyer in a significant quantity, since the seller “should have known that
the [illegal drug] would be used and further distributed illegally.” Id. “Proof of such knowledge
- 12 - alone, however, is insufficient to convict” a person of conspiracy to distribute an illegal drug. Id.
Accordingly, “[a]s a general rule, a single buyer-seller relationship, standing alone, does not
constitute a conspiracy.” Id. (emphasis added). Rather, additional evidence must exist “which
establishes the necessary preconcert and connivance” to elevate the relationship beyond that of
mere aiding and abetting. Id.
As in Zuniga, the issue we must determine in this case is whether the evidence
demonstrated that the person who sold Clark the cocaine intended “‘by the sale . . . to further,
promote and cooperate in’ [Clark’s] venture.” Id. (quoting Direct Sales, 319 U.S. at 713.) In
Zuniga, this Court held that evidence of a credit relationship between a buyer and a seller of
cocaine was sufficient to prove a conspiracy to distribute because it demonstrated that the seller
intended to further, promote and cooperate in the buyer’s enterprise. Id. at 530-32, 375 S.E.2d at
386-87. Similarly, in Edwards v.Commonwealth, 18 Va. App. 45, 48-49, 441 S.E.2d 351,
353-54 (1994), this Court held that a conspiracy existed between two buyers when the evidence
suggested that one of the buyers expected to share in the profits made by the other buyer through
the sale of the marijuana that they jointly purchased.
Here, however, there was no evidence of the nature of the relationship between Clark and
his supplier. Without some evidence of the nature of this relationship, the trial court could not
determine whether Clark merely made a single purchase from the supplier or whether the
supplier had entered into an agreement to cooperate in the further distribution of the cocaine.
Thus, the Commonwealth failed to demonstrate that the supplier had an intention to further,
promote and cooperate in Clark’s distribution of the cocaine. The evidence failed to establish the
second element of a conspiracy to distribute cocaine, and so we must conclude that the evidence
was insufficient to support Clark’s conviction for the crime. Therefore, we reverse and dismiss
the conviction for conspiracy to distribute cocaine under Code § 18.2-256.
- 13 - III.
For the foregoing reasons, we conclude that the trial court did not err regarding the
motion to suppress. We also conclude that the evidence was sufficient to support Clark’s
convictions for possession of cocaine with intent to distribute in violation of Code § 18.2-248
and for transporting one or more ounces of cocaine into the Commonwealth in violation of Code
§ 18.2-248.01. However, we conclude that the evidence was insufficient to support Clark’s
conviction for conspiracy to distribute cocaine in violation of Code § 18.2-256. Therefore, we
affirm his convictions for possession of cocaine with intent to distribute and for transporting
cocaine into the Commonwealth, and we reverse and dismiss his conviction for conspiracy to
distribute cocaine.
Affirmed in part, reversed and dismissed in part.
- 14 - Alston, J., concurring.
I agree with the majority that the trial court did not abuse its discretion in refusing to
consider Clark’s challenge to the scope of the search of his apartment during the hearing on the
motions to suppress. However, I would hold that the trial court erred in failing to consider
Clark’s subsequent motion to suppress challenging the scope of the search of his apartment and
that Clark properly preserved this issue for appeal. Nevertheless, because I would also hold that
the trial court’s error was harmless, I concur in the result reached by the majority.
I. Preservation of the Issue under Rule 5A:18
Prior to trial, Clark filed two written motions to suppress. The first moved to suppress
any statements he made to law enforcement officers on the grounds that they were obtained in
violation of Miranda v. Arizona, 384 U.S. 436 (1966). 7 The second moved to suppress the
evidence seized by police during the search of Clark’s apartment due to an alleged lack of
probable cause to issue the warrant.
During the initial hearing on the motions to suppress, held on January 5, 2010, Clark
attempted to raise an additional argument regarding his motion to suppress the evidence seized
by the police from his apartment, contending that the search of his apartment exceeded the scope
of the warrant. Clark argued that the warrant authorized only the seizure of controlled
substances and that, according to Clark, the seizure of papers, plastic baggies, and two scales
exceeded the scope of the warrant. After the Commonwealth objected on the ground that this
new argument was not included in Clark’s written motion regarding the issuance of the warrant,
Clark responded by stating to the trial court that he could file another motion challenging the
scope of the search of his apartment. In reaction to Clark’s response, the trial court said, “Well,
we’re not going to have two suppression hearings. I’ll make that ruling now. . . . We’re not
7 This motion is not at issue on appeal. - 15 - going to have another suppression hearing.” (Emphasis added). Clark responded that the trial
court could “handle [his motion on the scope of the search] at this juncture” by simply looking at
the warrant, and he “would ask the Court to do that.” However, the trial court refused to hear
argument on Clark’s challenge to the scope of the search of his apartment and sustained the
Commonwealth’s objection. At the end of the hearing, Clark reiterated to the trial court that he
should be allowed to “perfect a motion” because “a motion filed prior to the trial date should be
heard.” The trial court responded that the court should not “encourage seriatim filing of motions
to suppress.”
Thereafter, on February 26, 2011, Clark filed a third motion to suppress, specifically
challenging the scope of the search of his apartment. Clark noted in his written motion that it
was a restatement of the argument regarding the scope of the search of his apartment previously
raised orally before the trial court at the January 2010 hearing on the motions to suppress. Clark
further stated that his new motion was filed not to contravene the trial court’s ruling at that
hearing, but rather “solely to preserve the constitutional issue for appeal.” The written motion
also requested that the trial court “grant his motion to suppress the fruits of the search” of the
apartment. Clark’s motion was timely under Code § 19.2-266.2, because it was filed more than
seven days before trial.
On the day of trial, Clark brought the February 26 motion challenging the scope of the
search to the attention of the trial court. Clark noted that he had raised the issue of the scope of
the search of his apartment orally before Judge Martin 8 at the January 2010 hearing on the
original motions to suppress and had filed a written motion relating to the scope of the search as
8 As the majority notes, Judge Martin presided over the hearing on the motions to suppress. Judge Doyle presided over Clark’s trial. - 16 - well. Clark stated that he “didn’t push to have the date heard because Judge Martin had already
ruled previously that he wouldn’t authorize the filing of the motion.”
I respectfully suggest that these circumstances show that Clark did not “explain[] that
there was no need for an additional hearing” at the January 2010 hearing on the motions to
suppress, as the majority asserts. While Clark did ask the trial court to consider his argument
regarding the scope of the search at the January 2010 hearing on the motions to suppress, he did
not thereby concede that no further hearing was necessary. Instead, at the end of the hearing on
the motions to suppress, Clark reiterated his intent to raise his argument in a new motion to
suppress, and the trial court again denied Clark’s request, stating that it would not “encourage
seriatim filing of motions to suppress.” Furthermore, Clark later filed a motion specifically
focusing on his argument that the seizures exceeded the scope of the warrant and explained to the
trial court on the day of trial that he had refrained from requesting a hearing after filing his
motion not because he believed a hearing to be unnecessary, but because Judge Martin had
previously expressly ruled that no such hearing would be held. Indeed, these actions and
statements, in my view, show that Clark favored and properly perfected his request for a hearing
on his motion to suppress and was not formally heard only because the trial court had
preemptively ruled that it would not hold such a hearing.
In reaching its decision, the majority subordinates substance to form, contrary to the
longstanding policy of this Court. See, e.g., Irvine v. Carr, 163 Va. 662, 668, 177 S.E. 208, 210
(1934) (“[I]t has been the policy of this court for many years, and is still, to subordinate form to
substance, and not to allow the substantial rights of parties to be taken away for the sake of
adherence to any forms of procedure not essential to the orderly conduct of judicial
proceeding.”) The purpose of Rule 5A:18 “is to ensure that any perceived error by the trial court
is ‘promptly brought to the attention of the trial court with sufficient specificity that the alleged
- 17 - error can be dealt with and timely addressed and corrected when necessary.’” Wood v.
Commonwealth, 57 Va. App. 286, 303, 701 S.E.2d 810, 818 (2010) (quoting Brown v.
Commonwealth, 8 Va. App. 126, 131, 380 S.E.2d 8, 10 (1989)).
In the instant case, Clark made clear to the trial court both his argument regarding the
scope of the search of his apartment and his desire that the trial court hold a hearing and rule on
his oral motion to suppress. After the trial court expressly ruled that it would not hold another
hearing on the newly-raised issue, Clark made his objection to this ruling clear by reiterating his
desire to file a new motion and stating that “a motion filed prior to the trial date should be
heard.” Once the trial court again denied Clark’s request, it was not necessary for Clark to yet
again restate his objection to preserve it for appeal. The trial court had an opportunity to rule on
the issue, and indeed specifically ruled that it would not hold a hearing on the newly-raised
motion to suppress. Thus, in my view, Clark properly preserved the issue of the trial court’s
refusal to hold a hearing on his motion to suppress for appeal. See Weidman v. Babcock, 241
Va. 40, 44, 400 S.E.2d 164, 167 (1991) (holding that the plaintiffs’ claims were not waived by
their failure to object to the trial court’s oral ruling sustaining the defendant’s motion to dismiss
and endorsement of the trial court’s ruling merely as “seen” because the plaintiffs “repeatedly
made known to the court [their] position” during a hearing on the defendant’s motion to dismiss
and filed a motion for rehearing within 21 days after the issuance of the trial court’s final order);
Kaufman v. Kaufman, 12 Va. App. 1200, 1204, 409 S.E.2d 1, 3-4 (1991) (holding that although
the appellant failed to endorse the final decree or state any objections thereto, he had “made
known to the trial court his position” through memoranda and written correspondence prior to
the issuance of a final decree and the trial court had “specifically acknowledged the existence of
[the appellant’s] objections”).
- 18 - I respectfully disagree with the majority’s reliance on Nusbaum v. Berlin, 273 Va. 385,
641 S.E.2d 494 (2007), because the instant case is distinguishable from Nusbaum. In Nusbaum,
the trial court held an attorney in contempt for his misconduct during a jury trial, granted a
mistrial, disqualified the attorney’s firm from representing the plaintiffs in the original jury trial,
and awarded attorneys’ fees and costs to the opposing party. Id. at 390, 396, 641 S.E.2d at 496,
499. Initially, after the trial court imposed a fine on the attorney, the attorney noted only his
general objection to “the determination of the [c]ourt . . . and to all of the rulings.” Id. at 396,
641 S.E.2d at 499. Shortly thereafter, the attorney filed a motion asking the trial court to
reconsider its decision to disqualify his law firm from any further representation of the plaintiffs
and noted that he was “not asking the [trial] court to reconsider any other part of its rulings.” Id.
At a hearing on this motion, the attorney then stated that he wanted to “note specific objections
to the contempt of court findings since he had voiced only a general objection to the court’s
rulings” at the contempt hearing. Id. at 397, 641 S.E.2d at 500. The attorney objected to the
summary determination of contempt of court but stated that he was not “asking [the court] at this
time to change [its] ruling.” Id. (alterations in original). Instead, he stated that he was
attempting to ensure that he “preserved any right of appeal with respect to the contempt finding.”
Id. At a subsequent hearing, the attorney once again stated that he was not asking the trial court
to reconsider its ruling but that, instead, “he merely wanted the court’s order to include the
‘particulars’ of his objection with respect to the contempt of court conviction.” Id. On appeal,
the Supreme Court of Virginia held that the attorney waived his objection to the summary
conviction for criminal contempt because he never afforded the trial court the opportunity to rule
on the issue. Id. at 403, 641 S.E.2d at 503.
In Nusbaum, the Court determined that the record “contain[ed] no rulings by the circuit
court” on the issue raised by the defendant on appeal. Id. at 404, 641 S.E.2d at 504; see also
- 19 - Fisher v. Commonwealth, 16 Va. App. 447, 454, 431 S.E.2d 886, 890 (1993) (holding that
“because [the appellant] was denied nothing by the trial court, there is no ruling for [this Court]
to review”); Hogan v. Commonwealth, 5 Va. App. 36, 45, 360 S.E.2d 371, 376 (1987) (holding
that the appellant’s argument was waived under Rule 5A:18 because there was “no ruling of the
trial court to review”). In stark contrast, the instant case contains the express ruling of the trial
court during the January 2010 hearing that it would not hold a second hearing on Clark’s motion
to suppress. As such, this ruling is one capable of review by this Court. Unlike in Nusbaum,
Clark provided the trial court with ample opportunities to rule regarding his request to file, and
be heard, on a new motion to suppress challenging the scope of the search of his apartment.
Clark twice made a specific argument to the trial court that a timely-filed new motion should be
heard. Moreover, the trial court in fact expressly ruled on this issue at the January 2010 hearing
when it stated that it would not hold any further hearings on the motion to suppress. As a result,
the instant case is distinguishable from Nusbaum and Clark adequately preserved his issue for
appeal by making his objection known to the trial court.
Finally, in its rather fixed application of Nusbaum, the majority’s decision creates a
dilemma for trial counsel, who must balance the need to zealously advocate for their clients
against their professional obligations to “demonstrate respect for the legal system and for those
who serve it, including judges.” Preamble of the Virginia Rules of Professional Conduct.
Indeed, an attorney who continues to press his objection after the adverse ruling of the trial court
may face contempt of court charges. See Stroupe v. Rivero, No. 1936-02-4, 2003 Va. App.
LEXIS 630, at *13-14 (Dec. 9, 2003) (Benton, J., dissenting) (noting that the majority affirmed
the finding of contempt against an attorney who was “assertive in seeking a ruling” as required
by Virginia precedent establishing that “it is [an] attorney’s responsibility to obtain a ruling from
the trial judge”). Here, I believe that Clark, through counsel, was simply attempting to walk the
- 20 - fine line between the need to make clear his desire to argue his constitutional issue and his
obligation to provide due regard and deference to a prior ruling of the trial court with which he
disagreed. Suggesting that Clark should have somehow done more in the face of a clear mandate
from the trial court would, in my view, place Clark in an untenable, if not impossible, position.
II. The Trial Court Erred in Refusing to Hear Clark’s Motion to Suppress
As noted above, Clark timely filed his February 26, 2011 motion to suppress under Code
§ 19.2-266.2. The trial court ruled that it would not hold a hearing on the motion to suppress on
the grounds that the case “ha[d] been pending for an inordinate length of time” and that the trial
court should not “encourage seriatim filing of motions to suppress.” In my view, with all due
respect to the learned trial judge, and with due regard for the inherent ability of trial judges to
manage their own dockets and cases, I would suggest that the trial court had no statutory basis to
refuse to consider a timely-filed motion to suppress. Code § 19.2-266.2(B) provides that a
motion to suppress “shall be filed and notice given to opposing counsel not later than seven days
before trial in circuit court” and that “[a] hearing on all such motions or objections shall be held
not later than three days prior to trial in circuit court . . . .” (Emphasis added). Accordingly, this
language should be interpreted in this context of these very unusual circumstances to create a
mandatory obligation upon the trial court to consider this timely-filed motion to suppress. See
e.g., Upchurch v. Commonwealth, 31 Va. App. 48, 51, 521 S.E.2d 290, 291 (1999) (“When the
word ‘shall’ appears in a statute, it is generally used in an imperative or mandatory sense.”
(citing Crawford v. Commonwealth, 23 Va. App. 661, 666, 479 S.E.2d 84, 87 (1996)
(en banc)). 9 Because there was no statutory authorization for the trial court’s refusal to hold a
9 In addition, in the context of this case, I believe Clark’s failure to explicitly request a hearing on his motion to suppress after the motion was filed is inconsequential. I find no published decisions in which a Virginia court has determined whether the onus falls on the moving party or the trial court to ensure a hearing on a motion to suppress no later than three days prior to trial, as required by Code § 19.2-266.2. Although unpublished persuasive authority - 21 - second hearing and rule on Clark’s motion to suppress, I would hold that the trial court erred in
failing to do so.
III. Harmless Error
Despite my view that the trial court erred in refusing to hold a hearing and rule on Clark’s
February 26, 2011 motion to suppress, I nevertheless concur in the result reached by the majority
because the trial court’s error was harmless. The trial court’s refusal to hold a hearing or rule on
Clark’s motion to suppress was, in effect, a denial of the motion. Because, as a matter of law,
Clark’s motion to suppress the fruits of the search of his apartment on the grounds that the items
seized were beyond the scope of the warrant would properly have been denied if heard by the
trial court, I would hold that the trial court’s effective denial of Clark’s motion was harmless.
“When a federal constitutional error is involved, a reviewing court must reverse the
judgment unless it determines that the error is harmless beyond a reasonable doubt.” Clay v.
Commonwealth, 262 Va. 253, 259, 546 S.E.2d 728, 731 (2001) (citing Chapman v. California,
386 U.S. 18, 24 (1967); Pitt v. Commonwealth, 260 Va. 692, 695, 539 S.E.2d 77, 78 (2000)).
First, officers searched Clark’s vehicle with his consent. “A consensual search is
reasonable if the search is within the scope of the consent given.” Grinton v. Commonwealth, 14
Va. App. 846, 850, 419 S.E.2d 860, 862 (1992) (citing United States v. Martinez, 949 F.2d 1117,
1119 (11th Cir. 1992)). Appellant does not argue that officers exceeded the scope of his consent
exists suggesting that the burden is upon the moving party to request the hearing, see Cooke v. Commonwealth, No. 1821-06-2, 2008 Va. App. LEXIS 208 (Apr. 29, 2008); Moody v. Commonwealth, No. 3183-02-1, 2003 Va. App. LEXIS 624 (Dec. 9, 2003), the instant case is distinguishable because the trial court here preemptively ruled that it would not hold a hearing on any further motions to suppress. In light of this ruling, it would again elevate form over substance to require a moving party to explicitly request a hearing, despite the fact that the trial court had already ruled that no such hearing would take place. Clark’s desire for a hearing was clear, and, as he explained to the trial court, his failure to “push to have the date heard” was a result of the trial court’s earlier ruling that it would not hold any more hearings on motions to suppress. - 22 - to search his vehicle. Therefore, even if papers seized from the vehicle were outside the scope of
the warrant, officers were authorized to seize the papers based on the consensual nature of the
search.
Moreover, even if the scales and baggies seized from Clark’s apartment were beyond the
scope of the warrant, their seizure was proper because the record clearly indicates that the items
were in plain view. In reaching this determination, I consider “the entire record,” including trial
testimony, as instructed by Patterson v. Commonwealth, 17 Va. App. 644, 648, 440 S.E.2d 412,
415 (1994) (holding that “[o]n appeal, we consider the entire record in determining whether the
trial court properly denied appellant’s motion to suppress”).
“The plain view doctrine provides that no reasonable expectation of privacy attaches to
objects exposed to plain view. Thus, police observation of objects in plain view does not
implicate the Fourth Amendment so long as the police are legitimately in the place where they
viewed the objects.” Gibson v. Commonwealth, 50 Va. App. 744, 749, 653 S.E.2d 626, 628
(2007) (citations omitted).
[I]n order for a seizure to be permissible under the plain view doctrine, two requirements must be met: “(a) the officer must be lawfully in a position to view and seize the item, [and] (b) it must be immediately apparent to the officer that the item is evidence of a crime, contraband, or otherwise subject to seizure.”
Conway v. Commonwealth, 12 Va. App. 711, 718, 407 S.E.2d 310, 314 (1991) (en banc)
(alterations in original) (citing Stokes v. Commonwealth, 4 Va. App. 207, 209, 355 S.E.2d 611,
612 (1987)).
Here, officers were lawfully searching Clark’s apartment for controlled substances
pursuant to a valid warrant when they found one scale atop plastic storage containers in Clark’s
bedroom, another scale in a closet, and the baggies inside a bag on the bed in the bedroom.
Because controlled substances could have been hidden in the closet or bag, the police were
- 23 - authorized by the warrant to inspect the closet and bag. See Blair v. Commonwealth, 225 Va.
483, 489, 303 S.E.2d 881, 886 (1983) (holding that the police, in searching for a sheet of coins,
“could look into every part of the building and its hiding places, regardless of size”). Therefore,
the officers were lawfully in Clark’s apartment and lawfully inspected the bedroom, including
the closet and bag, where the objectionable scales and baggies were found.
In addition, it was immediately apparent to the officers that the scales and baggies were
evidence of a crime, contraband, or otherwise subject to seizure.
The “immediately apparent” requirement equates to probable cause in the context of “plain view.” Texas v. Brown, 460 U.S. 730, 741-42, 103 S. Ct. 1535, 1542-43, 75 L. Ed. 2d 502 (1983) (plurality opinion). “[P]robable cause is a flexible, common-sense standard . . . [which] merely requires that the facts available to the officer would ‘warrant a man of reasonable caution in the belief’ that certain items may be . . . useful as evidence of a crime.” Id.
Commonwealth v. Ramey, 19 Va. App. 300, 304, 450 S.E.2d 775, 777 (1994) (alterations in
original). Officer Johnson testified that he discovered one scale in the closet and the baggies in
the bag immediately upon inspection of the closet and bag. Given that the warrant authorized a
search for controlled substances, and scales and baggies are associated with the distribution of
controlled substances, it was immediately apparent that the scales and baggies were evidence of
a crime: possession of a controlled substance with the intent to distribute.
Because the officers were lawfully in a position to view and seize the contested items,
and it was immediately apparent to the officer that the contested items were evidence of a crime,
the plain view doctrine justified the seizure of the baggies and scales. Thus, Clark’s third motion
to suppress based upon the argument that the search exceeded the scope of the warrant would
have properly been denied had the trial court considered it. As a result, the trial court’s failure to
consider Clark’s third motion to suppress, which in effect resulted in a denial of the motion, was
- 24 - harmless error. Because I would find the trial court’s error harmless, I concur in the result
reached by the majority.
- 25 -